Council owned car park PCN advice

franchise

Hi everyone, I'm after some advice on whether I should appeal a fine I received earlier today.

I initially only planned to park for up to an hour but changed my mind and returned to the car before the time was up to get another sticker. I put my money in the machine to pay for another hour but the machine was faulty and didn't give me a ticket but still took my money. A bit annoyed I had to run to the nearest cash machine, get cash out, then went into a pub to get change for the machine. Once I had returned (about 15 mins later) a Civil Enforcement Officer had just given me a ticket and was onto the next car. I tried to explain what had happened but she asked how should she know that was true. By this time an alarm was going off on the machine and the words "Not In Use" displayed on the screen (I have pictures and a short video clip of this).

At this point I noticed a security van and guard (who I believe was trying to fix and empty the machine) was a few meters away and I asked him if there was something wrong with the machine and he said there was but said he wouldn't give me his name as a witness that there was a fault. He then threatened to call the police when i took a picture of the registration of his van (but I only really did this as I was annoyed and thought it might worry him into helping).

I don't seem to be able to post a picture of the ticket as I am a new user to the site.

I realise I was a complete fool for not leaving a note in the car window, but I completely didn't think.

Any advice from you experts would be very welcome.

James

Coupon-mad

Good on you, I reckon you could win this one. Everything you did was perfectly reasonable and you have evidence of what you were saying about the machine. In fact most Council PCNs can be appealed successfully so you should be fine if you follow advice given (and post about it on pepipoo.com forums as well).

Pepipoo link:

http://forums.pepipoo.com/index.php?showforum=30

Post your picture link without the http:// at the beginning, we will be able to convert it (you can't post fulls links yet on MSE). On pepipoo you will be able to post full links straight away but do read their FAQs first as they are strict about 'how to post pictures' on there.

Make sure you show us/pepipoo forum the back of the PCN as well, all the small print.

franchise

Here is the front (just needs the htt p:// bit)
img101.imageshack.us/img101/6275/fine1edit.jpg

I drove over to a friends house to get this scanned but forgot to do the back, but I will get that bit tommorow morning :P

Coupon-mad

Here's the full link, can't see anything wrong with that part:

http://img101.imageshack.us/img101/6275/fine1edit.jpg

Need to see the back asap, that's where the flaws often are in the small print.

franchise

I've just taken pictures with my camera rather than waiting for the scanner (they are better quality than I though they would be!)
http:// img802.imageshack.us/img802/5858/26460448.jpg
http:// img203.imageshack.us/img203/2109/28405628.jpg

Coupon-mad

Here are the full links to the back of the PCN:

http://img802.imageshack.us/img802/5858/26460448.jpg

http://img203.imageshack.us/img203/2109/28405628.jpg

I can only pick out from the PCN back, the use of the word 'within' which I think is wrong and misleading. I think that 'if you challenge this PCN within 14 days' should read 'if you challenge this PCN before the end of the period of 14 days starting with the day on which this PCN was served'.

This is different by a day I think - and if I'm right it's prejudicial - but you could save this for your formal reps if you get issued a Notice to Owner.

If I were you at this early stage, I would put in a simple informal appeal to be received by the Council before the 14th day, so that if they reject you haven't lost anything and you'll still be offered the discounted fine in their rejection letter and you will be back to square one. There's no point spending a lot of time poring over evidence and perfecting your letter for informal challenges - because nine times out of ten Councils just reject them out of hand (shocking but true).

I would simply appeal on the basis you have explained - that the machine was broken and that you have video evidence of the fault, you also discussed it and drew it to the attention of the CEO - and include the registration number of the van of the man who arrived to repair it just after your PCN was issued.

Say you are sure the CEO's notes will show that you are correct and you request that the PCN be cancelled at this early stage. Finish by saying that, if for any reason they refuse to cancel the PCN, you request a copy of the CEO's notebook and a copy of the repair records for that machine as you will have no hesitation in taking your appeal to the adjudicator.

Come back here if you get a rejection letter and/or NtO and then at that stage you may need more help with wording your formal reps.

franchise

Thanks a lot for your help. I'll get that letter sent on Monday.

blackadder01_2

franchise wrote: »

Thanks a lot for your help. I'll get that letter sent on Monday.

Much safer to appeal using the email address at the back of the PCN, plus it's free.

[EMAIL="parkingoffice@leicester.gov.uk"]parkingoffice@leicester.gov.uk[/EMAIL]

TheBogsDollocks

You can use this appeal if you so wish, it is all relevant to your PCN. I advise adding a paragraph at the beginning to explain what you detailed above and then use the rest to add weight.

Dear Sirs

I understand that you are of the opinion that I have contravened a restriction governed by a traffic order. I am aware that the legislation enabling a traffic order to be made is the Road Traffic Regulation Act 1984.

Although you accuse me of this contravention you have not provided any evidence that confirms that the restriction is supported by a legally enacted traffic order. You may possess a few photos of my vehicle but this is meaningless as evidence of a supposed contravention unless it is supported by a valid traffic order as well as evidence that the traffic order has been made in accordance with the law.

Therefore it is necessary for you to provide me with a full copy of the traffic order that you believe has been contravened and I require you to explain fully what article or articles I allegedly contravened and to direct me to the specific entry for the location concerned within the relevant schedule and to explain fully why you believe that I do not qualify for one of the given exemptions within the traffic order. It is paramount that the traffic order includes the preamble and all the articles as well as the schedules and is sealed and dated and accompanied by all maps. If the original order has been amended then it is necessary that these amendments are also provided in full. I will remind you that in the case between Terence Chase v Westminster City Council, the adjudicator emphasised that a council has a legal duty to provide all evidence at the earliest opportunity to an appellant. Failure to do so is considered by the courts to be prejudicial.

In addition, I am aware of the provision under section 76(3) of the Traffic Management Act 2004;

(3)Civil enforcement officers—
(a) when exercising specified functions must wear such uniform as may be determined by the enforcement authority in accordance with guidelines issued by the appropriate national authority, and
(b) must not exercise any of those functions when not in uniform.

The council has provided no evidence that the CEO was wearing a uniform in compliance with section 76(3)(a) and with the guidance given in section 42 of the Secretary of State’s Statutory Guidance;

42. When exercising prescribed functions a CEO must wear a uniform. The
uniform should clearly show:
• that the wearer is engaged in parking enforcement;
• the name of the local authority/authorities of whose behalf s/he is acting;
and
• a personal identity number.

As the wearing of uniform by the CEO is mandatory when serving a regulation 9 PCN, it is reasonable to conclude that an efficient and conscientious enforcement authority will inspect and keep a record of each officer before they begin their patrol to ensure a uniform is worn and that it complies with the guidance. Since it is a mandatory requirement, the burden of proof must remain with the enforcement authority. This principle is supported in the adjudication cases between Ronald Kenwick Douglas v The London Borough of Brent as well as Derek Jack Hayward v London Borough of Croydon. Therefore, I require unequivocal evidence that the officer who served the PCN upon my vehicle was wearing the correct uniform in the correct manner. Without any evidence to the contrary, it is not unreasonable to assert that the PCN was served by the CEO in contravention of section 76(3)(a) thus invalidating the PCN served.

I also bring to your attention the important fact that PCN fails to comply with regulation 3(2)(b) contained within Statutory Instrument 2007/3482 and it is therefore my belief that the PCN is not lawful.

3(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—
(a) that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b) that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i) those representations will be considered;

Although the PCN does say that representations will be considered, it fails to make the recipient aware of the period of time they are lawfully entitled to in which to submit such representations. The lawful period is given by regulation 3(2)(b) and it is given as any time before the NtO is served and as such a PCN must convey this fact to the recipient. This requirement is repeated in paragraph 8.40 of the DfT published ”Operational Guidance to Local Authorities”;

“that, if representations against the penalty charge are received at such address as may be specified for the

purposes before an NtO is served”:

Failure to include this specific statutory information on a PCN could prejudice the recipient and consequently such a failure should not be considered immaterial. For example, a person (where the NtO has not yet been served) may only remember about the PCN on the 30th day after its service and as the PCN only makes reference to “challenges” in sentences that refer either to a 14 day or 28 day period, that person may conclude that it is too late to make representations even though that person is lawfully entitled to make representations at any time before an NtO is served. Thus the failure of the PCN to convey the information given by regulation 3(2)(b) is, or could be, critical to the response of the driver/owner to the PCN.

Considering this fact I expect you to cancel this penalty charge forthwith. If you do not cancel then I will require you to explain fully why you think the PCN does comply with regulation 3(2)(b).

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and provide the required evidence then I will be, due to your improper consideration, including a further charge of procedural impropriety when my defence is submitted for adjudication and in addition I will proceed with a formal complaint, regarding your maladministration, to the office of the council’s Chief Executive.

Yours with love, hugs and kisses

franchise

Cheers for some more advice. I think I will save most of that if/when they turn down my informal appeal.